5.  The applicant was born in 1960 and lives in Durrës. He has a son who was born on 25 August 1994. The son is currently 18 years old.
6.  In September 1999 the applicant’s late spouse, who was suffering from a serious disease, entered Italy irregularly, together with the son, in order to obtain medical treatment. On an unspecified date the applicant joined his spouse and son in Italy.
7.  On an unspecified date in either August or September 2002, following disagreements with his in-laws, the applicant was expelled from Italy since he did not have a residence permit. His wife and son, whose situation had not yet been regularised, continued to remain in Italy. His wife died on 7 October 2002.
8.  On 17 October 2002, the applicant’s sister-in-law, Z., filed an action with the Ancona Youth Court (“the Italian court” - tribunale per i minorenni), seeking custody of the applicant’s child.
9.  On 30 December 2002 a report of the local social health centre stated that the child feared to return and live with the father because of his alleged ill-treatment of the deceased mother. The report further mentioned that the father had abandoned the child and the spouse without notice at a time when they needed him most.
10.  On 4 June 2003 the Italian court granted Z.’s request. It entrusted Z. with the custody of the applicant’s child, under the supervision of the Social Service of the city of Senigallia (affida il minore alla zia ... sotto la vigilanza del Servizio Sociale del Comune di Senigallia...). It further appointed the Mayor of Senigallia as the child’s temporary guardian (tutore provvisorio). The court suspended the parents’ parental rights (dichiara sospesa la potestà dei genitori) on the ground that they had allowed the child to leave Albania without addressing the serious difficulties that he would subsequently face. It further prohibited the child’s removal from Italian territory. It assigned the International Social Service (“ISS” – an NGO) to conduct an investigation into the applicant’s family situation. No provision was made as regards the applicant’s visiting or contact rights in respect of his child.
11.  On 25 September 2003 the ISS, after trying to contact the applicant, informed the Italian court that he refused to speak to them. He simply requested that the child be returned to him. Following contacts with his neighbours, the ISS declared that the applicant had re-married and his wife was expecting a child. Being unemployed, he was living on his spouse’s income.
12.  On 22 March 2004 the Italian social services provided the court with an update on the applicant’s child. By that time, the child’s status in Italy had been regularised and his situation appeared to be balanced.
13.  On 4 April 2005 the Italian Ministry of Justice informed the applicant of the operative provisions of the decision of 4 June 2003 and provided him with an update on his child as of 6 November 2004. The applicant was further informed of the possibility of lodging an appeal with the Italian court, through a lawyer, against that decision.
14.  On 21 December 2005 the letter was translated and certified, in the applicant’s presence, by an Albanian notary public.
15.  In a statement of 15 January 2007 before the Italian court the applicant’s child stated that he had not been in contact or seen the applicant for a number of years. He did not wish to speak to the applicant on the telephone because he had allegedly been ill-treated by him in the past.
16.  On 7 December 2007 the applicant’s child confirmed to the Italian court the statement made on 15 January 2007.
17.  In a letter of an unspecified date, which was sent by registered mail and was registered with the Italian court’s registry on 22 January 2007, the applicant stated that his in-laws had abducted his child and that he had no contact with him. He stated that the child’s custody had been entrusted to his aunt without the applicant’s prior consent and that he sought the Italian authorities’ assistance in re-establishing contact with the child.
18.  In a letter, which was sent by registered mail and was registered with the Italian court’s registry on 22 February 2007 and signed by the applicant’s Albanian lawyer, the applicant requested that his right of access to his child pursuant to the Durrës District Court’s decision of 30 June 2006 (see paragraph 26 below) be enforced by the Italian authorities. As he could not travel to Italy, he requested the Italian court to allow his child to travel to Albania, as indicated in the Albanian court’s decision. He stated that he earned a monthly income of 700 euros, that he lived in a flat measuring 70 sq. m which offered appropriate accommodation, that he had a clean criminal record, that his feelings and affection for his child had neither changed nor ceased and that his efforts to contact the child had been met with the aunt’s obstinate refusal. The applicant further stated that his request was aimed at exercising the right of contact as established by the Albanian court on 30 June 2006, including unobstructed telephone contact with his child, or in any other manner deemed appropriate by the Italian court. He further requested that the child’s custody be entrusted to the Italian social services. However, he did not seek the child’s permanent return to Albania. No power of attorney was submitted to the Italian court’s registry.
19.  It would appear that on 15 November 2007 the applicant, relying on the Hague Child Abduction Convention and the Hague Jurisdiction Convention (see paragraphs 36-43 below), requested the Italian Ministry of Justice to institute proceedings for the validation of the Albanian court’s judgment of 30 June 2006 and the enforcement of his right of contact with his child.
20.  On 27 November 2002 the applicant lodged a criminal action with the Durrës District Court (“the District Court”) pursuant to Article 127 of the Criminal Code (“CC”) and Article 59 of the Code of Criminal Procedure (“CCP”), requesting the return of his child who had allegedly been wrongfully retained in Italy.
21.  On 13 January 2003 the District Court decided to discontinue the case (vendosi pushimin e çështjes) on the ground that the applicant’s action was unsubstantiated.
22.  On 7 October 2003 the applicant filed another action with the District Court accusing his in-laws of wrongful retention of the child contrary to Article 127 of the CC.
23.  On 29 December 2004 the District Court found the applicant’s in-laws guilty as charged and sentenced them, including Z., to a fine. This decision was upheld by the Court of Appeal and the Supreme Court in 2005 and 2007 only in respect of Z. The proceedings took place in the absence of Z., who apparently was represented by a lawyer. No reference was made to the Italian court’s decision of 4 June 2003 (see paragraph 10 above).
24.  On 11 April 2008, following another action filed by the applicant pursuant to Article 127 of the Criminal Code and Article 59 of the CCP, the District Court rejected the action. Having notified Z. of the proceedings through the Italian Ministry of Justice, the court found that she had been tried once and found guilty of the same offence, in respect of which she had benefitted from an amnesty (see paragraph 23 above). Relying on the Italian court’s decision of 4 June 2003, the District Court ruled that Z. had not been involved in any wrongful removal of the child.
25.  However, on 3 March 2009 the District Court found Z. guilty of the criminal offence of wrongful retention of the child in accordance with Article 127 of the CC and sentenced her to a fine. The decision stated that even though Z. returned to Albania every summer, she deliberately refused to bring the applicant’s child, in breach of that court’s decision of 30 June 2006 (see paragraph 26 below), in order to sever the links completely between the applicant and his child. The proceedings took place in the absence of Z., who was represented by a lawyer of her own choosing.
26.  On 30 June 2006, following the applicant’s civil action, the District Court granted the applicant’s request to meet with his child. It ordered Z. to allow the applicant to see his child at least twice a year, between 1 and 15 August and between 27 December and 6 January. The proceedings were conducted in the absence of Z., who had been notified of them by way of public notice. No reference was made to the Italian court’s decision of 4 June 2003 (see paragraph 10 above). The relevant parts of the decision read as follows:
“The claimant was informed that the child is being treated very well by the aunt, the defendant [in this set of proceedings]; the child attends school and has obtained good results. Motivated by paternal feeling, he initially and unwittingly lodged the action seeking the return of his child from the defendant.
During the proceedings, putting the child’s interest first, he limited his action to requesting the court to rule on the right to have contact with his child. He submitted before the court that he earns a good salary, that he has founded a new family and that he has a home and a child from his second marriage.
Pursuant to Article 155 of the Family Code, the court sought the opinion of a social worker. Having regard to Article 255 of the Family Code, the claimant’s action should be accepted and his right to meet with the child, who is being cared for by the aunt, should be enforced during the school holidays.”
27.  On 27 November 2006 an execution writ was issued in respect of the District Court’s decision. The local bailiff was entrusted with its enforcement.
28.  On 24 July 2008 the District Court rejected the applicant’s action to have the decisions of 29 December 2004 and 30 June 2006 recognised pursuant to the Hague Child Abduction Convention and the Hague Jurisdiction Convention on the ground that those decisions were directly enforceable in Albania.
29.  On 3 March 2009 the District Court ordered Z. to allow the applicant to meet with his child. The decision stated that the applicant could not be denied such a right in so far as his parental responsibility had not been revoked. However, it further stated that the applicant should find the legal means to secure the enforcement of this judgment, the court being unable to ensure that he would obtain a visa for Italy and be able to go there. It discontinued the proceedings as regards the applicant’s claim for the return of his child, the applicant having withdrawn that claim.
30.  From 2003 to 2009 the applicant sought the assistance of the relevant Albanian authorities (the Ministry of Interior, the Ministry of Justice, the Ministry of Foreign Affairs, the Ombudsperson (Avokati i Popullit), the Prime Minister’s Office, the President’s Office) in enforcing his right of contact with his child.
31.  On 6 July 2005 the General Prosecutor’s Office sought the assistance of the Italian Interforce Police Liaison Office in Albania (“the Interforze”), as regards the status of the applicant’s child in Italy. On 8 July 2005 the Interforze informed the General Prosecutor’s Office of the Italian court’s judgment of 2003.
32.  In September 2006 the Ministry of the Interior stated that it was beyond its jurisdiction to secure the return of the child to Albania or the fulfilment of other requests made by the applicant in so far as the child’s custody had been entrusted to Z. on the basis of the Italian court’s decision.
33.  In 2002, 2006 and 2008 the Ministry of Foreign Affairs informed the applicant that the Albanian consulate in Milan had been asked to follow his case.
34.  On 29 January 2009, following a request for information made by the Ombudsperson on the applicant’s case, the Ministry of Justice responded, in so far as relevant, as follows:
“The Ministry of Justice has been in intensive contact with [Mr Qama] and have expressed their wish to resolve his problem. He has asked the Ministry of Justice to enforce the Durrës District Court’s decision of 30 June 2006. The Ministry of Justice, together with the Bailiff Office Directorate, have repeatedly informed Mr Qama that there exists no legal basis to request the Italian authorities to recognise and enforce an Albanian civil court’s decision, since Albania is not a party to any international agreements which govern the recognition and enforcement of Albanian civil court decisions. ... The Ministry of Justice has proposed that Mr Qama enquire with the Ministry of Foreign Affairs (e ka orientuar Z. Qama që t’i drejtohet Ministrisë së Punëve të Jashtme).
35.  On 16 February 2009 the applicant was informed of the response of the Ministry of Justice.
36.  The Hague Child Abduction Convention entered into force in respect of Albania on 1 August 2007 and in respect of Italy on 1 May 1995. Under Article 1, its objects are twofold, namely:
“a)  to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b)  to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
37.  Under Article 5 “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence and, “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
38.  The duties under the Hague Child Abduction Convention are discharged by a Central Authority in accordance with its Article 6. The Ministry of Justice, Department of Juvenile and Family Law, has been designated as the Central Authority in respect of Albania and the Ministry of Justice, Department of Juvenile Justice (Dipartimento per la Giustizia Minorile) is the Italian Central Authority.
39.  Under Article 7, either directly or through any intermediary, the Central Authority is tasked with taking the following measures towards achieving the objects of the Hague Child Abduction Convention:
“a)  to discover the whereabouts of a child who has been wrongfully removed or retained;
b)  to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c)  to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d)  to exchange, where desirable, information relating to the social background of the child;
e)  to provide information of a general character as to the law of their State in connection with the application of the Convention;
f)  to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
g)  where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h)  to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i)  to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
40.  Article 8 recognises a person’s right to make an application for the return of a child, who has been removed or retained in breach of custody rights, to the Central Authority of the child’s habitual residence or of another Contracting State.
41.  Article 21 recognises a person’s right to make an application for the effective exercise of rights of access in the same way as an application for the return of the child. It states that:
“An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”
42.  As regards Article 21, the Explanatory Report by Ms Elisa Pérez-Vera on the drafting of the Hague Child Abduction Convention, which is to be found at http://www.hcch.net/upload/expl28.pdf, states, in so far as relevant, the following:
“...it must be recognised that the Convention does not seek to regulate access rights in an exhaustive manner; this would undoubtedly go beyond the scope of the Convention’s objectives. Indeed, even if the attention which has been paid to access rights results from the belief that they are the normal corollary of custody rights, it sufficed at the Convention level merely to secure co-operation among Central Authorities as regards either their organisation or the protection of their actual exercise.”
43.  The Hague Jurisdiction Convention entered into force in respect of Albania on 1 April 2007. Italy signed the Hague Jurisdiction Convention on 1 April 2003, no ratification having taken place to date. Its aim is to establish common provisions in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.
44.  The Contact Convention entered into force in respect of Albania on 1 September 2005. Italy signed the Contact Convention on 15 May 2005, no ratification having taken place to date. Its object is to determine general principles to be applied to contact orders, to fix appropriate safeguards and guarantees to ensure the proper exercise of contact and the immediate return of children at the end of the period of contact and to establish co-operation between central authorities, judicial authorities and other bodies in order to promote and improve contact between children and their parents, and other persons having family ties with children.